Citation Nr: 1125320
Decision Date: 07/05/11 Archive Date: 07/14/11
DOCKET NO. 07-38 011 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUES
1. Entitlement to service connection for cataracts.
2. Entitlement to an evaluation in excess of 10 percent for left lower extremity peripheral neuropathy.
3. Entitlement to an evaluation in excess of 10 percent for right lower extremity peripheral neuropathy.
4. Entitlement to a total disability evaluation based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Tenner, Counsel
INTRODUCTION
The Veteran served on active duty from June 1966 to June 1968.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision rendered by the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2009, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the proceeding is of record.
In May 2009, the Board issued a decision in which it denied entitlement to an increased rating for diabetes mellitus and increased special monthly compensation for loss of use of a creative organ. In addition, the Board remanded claims for service connection for cataracts, coronary artery disease, hypertension, and claims for increased rating for erectile dysfunction, and left and right lower extremity peripheral neuropathy. Finally, the Board referred back to the RO a claim for TDIU.
The Veteran appealed that part of the decision that denied entitlement to an increased rating for diabetes mellitus to the United States Court of Appeals for Veterans Claims (Court). In October 2010 Memorandum Decision, the Court affirmed the Board's decision denying an increased rating for diabetes mellitus but modified that part of the decision referring a claim for TDIU to instead reflect remand of that claim.
In short, because a claim for TDIU is not a separate claim, but instead is part and parcel of the determination for the rating of disability, remand, rather than referral was the appropriate disposition. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to TDIU, as a component of the claim for increased rating for peripheral neuropathy is addressed in the remand portion of the decision.
Additionally, since the May 2009 decision, the RO, in May 2011, granted claims for service connection for coronary artery disease, hypertension, and granted a 20 percent evaluation for erectile dysfunction. Since, the Veteran has not appealed the disability rating or effective dates assigned for coronary artery disease or hypertension, and since the 20 percent rating assigned for erectile dysfunction constitutes the maximum permissible rating, those issues are no longer on appeal to the Board.
The issues concerning the evaluation of left and right lower peripheral neuropathy, to include TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
While the Veteran has cataracts, they were not incurred in service, were first shown many years following discharge from service, are not due to or aggravated by service-connected diabetes mellitus, but instead are most likely due to the aging process.
CONCLUSION OF LAW
The criteria for service connection for cataracts, to include as secondary to service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. The Veterans Claims Assistance Act of 2000 (the VCAA)
With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010).
Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide and (3) that the claimant is expected to provide.
The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C.A. § 5103(a).
Prior to initial adjudication of the Veteran's claims, he was sent a letter dated in April 2006 that satisfied the duty to notify provisions regarding service connection claim to include the manner in which VA assigns initial disability ratings and effective dates. He was advised of the criteria for service connection and further advised to identify or submit evidence showing that a current cataract disability was either caused or aggravated by a service-connected disability. He was provided additional notice in June 2009 which again advised of the criteria for service connection.
The Board also concludes VA's duty to assist has been satisfied. Available service treatment records are in the file. The Veteran referenced treatment at VA medical facilities and those records have been obtained. The Veteran submitted various private treatment records. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.
The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). The Veteran was provided VA examinations in August 2006, March 2008, and September 2009. Concerning these VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In sum, and as discussed in greater detail herein, the reports of the examination reflect consideration of the Veteran's history, recordation of his current complaints, and appropriate physical examinations and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that the examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (2010).
Finally, in the May 2009 Board remand, it directed that the RO/AMC obtain current VA treatment records and afford the Veteran a VA examination. The RO/AMC obtained extensive records and afforded the Veteran examinations in September 2009. Hence, the Board finds that there has been substantial compliance with the terms of its remand directive.
II. Analysis
The laws pertinent to the claims for service connection are as follows:
Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131.
Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247 (1999).
In the alternative, pursuant to 38 C.F.R. § 3.303(b) (2010), entitlement to service connection may be established by two other means-chronicity and continuity of symptomatology. Chronicity is established if the appellant can demonstrate (1) the existence of a chronic disease in service and (2) present manifestations of the same disease. Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008). Continuity of symptomatology may be established if the appellant can demonstrate (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Kent v. Nicholson, 20 Vet. App. 1, 13-14 (2006) (citing Savage v. Gober, 10 Vet. App. 488, 495 (1997). See also 38 C.F.R. § 3.303(b).
If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (2010) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2010) are also satisfied: AL Amoidosis; Chloracne or other acneform disease consistent with chloracne; Type 2 Diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft- tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The terms "soft tissue sarcoma" includes malignant schwannoma. 38 C.F.R. § 3.309(e) and Note (1) (2010).
Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In that decision, the Court held that the term "disability" as used in 38 U.S.C.A. § 1110 referred to impairment of earning capacity, and that such definition mandated that any additional impairment (emphasis supplied) of earning capacity resulting from an already service-connected condition shall be compensated.
Here, the Veteran alleges that he has an eye disability manifested by cataracts that are secondary to service-connected diabetes mellitus. He alleges that his doctors believe that a relationship exists between cataracts and diabetes mellitus. (See, e.g., Hearing Transcript at 11.)
Even though not alleged by the Veteran, the Board has reviewed the service treatment records and the claims file for evidence that any cataract disability is directly due to service or presumptively due to exposure to herbicide agents. Unfortunately, it can find none. While the Veteran is currently diagnosed with cataracts, they were not shown in service nor were the evident until many years following discharge from service. They are not a disease process associated by herbicide exposure and there is no persuasive evidence linking a current cataract disability to such service. As such, service connection on a direct basis or based on continuity of symptomatology is not warranted.
In addition, the Board finds that service connection on a secondary basis is not warranted. Rather, the overwhelming weight of the evidence reveals that cataracts are age-related and not due to or aggravated by service-connected diabetes mellitus. For instance, on VA examination in August 2006, there were no cataracts found. (See August 2006 VA examination, Page 7.) A VA treatment record that same month, however, did note a cataract, but described it as an "incipient senile cataract." Similarly, during VA examination in March 2008, the examiner noted the presence of "very early stage Grade I nuclear cataracts." The examiner concluded, however, that such were "absolutely normal for his age and is not due to his diabetes but is age-related."
Most recently, the VA examiner in July 2010 found "early stage age related nuclear cataracts." The examiner did not indicate that they were any way related to diabetes mellitus, but instead opined, that they were "definitely age-related."
The Board has reviewed the private treatment records and medical statements. While they contain opinions linking other residual disabilities to diabetes mellitus, they do not state that any cataract disability is related to diabetes mellitus.
In short, the only evidence in support of the claim comes from the Veteran's lay testimony indicating a possible relationship between diabetes mellitus and cataracts. The Veteran himself has not offered any explanation for his belief in such a relationship. The Board points out that the determination of an etiological relationship between non-observable systemic disorders such as cataracts and its complications are clearly matters that are far removed from the realm of lay expertise. The Board consequently finds that his bare opinion in this regard is entitled to no probative value. See generally, Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (vacating and remanding a decision in which the United States Court of Appeals for Veterans Claims categorically held in a service connection case that "a valid medical opinion was required to establish nexus, and that [a lay person] was 'not competent' to provide testimony as to nexus because [that individual] was a layperson.")
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for cataracts. Therefore, the claim must be denied.
ORDER
Service connection for cataracts is denied.
REMAND
On March 28, 2011, the RO issued a Supplemental Statement of the Case in which it continued the denial of the claims for increased rating for left and right lower extremity peripheral neuropathy. He was provided an "SSOC Notice Response" whereby he was given the option to provide additional evidence within 30 days for the RO's consideration. On April 18, 2011, the Appeals Management Center (AMC) received additional evidence pertaining to the claims for higher ratings for peripheral neuropathy. The AMC did not review the evidence. The Veteran has a right to have the additional evidence considered by the RO/AMC in the first instance. See generally, 38 C.F.R. § 20.1304; Disabled American Veterans v. Principi, 327 F.3d 1339 (Fed. Cir. 2003). He has not waived review by the RO/AMC. In view of the above, and to avoid any prejudice to the Veteran (see Bernard v. Brown, 4 Vet. App. 384 (1995)), the matter on appeal must be returned to the RO/AMC for consideration of the claim in light of all additional evidence added to the record since the March 2011 Supplemental Statement of the Case.
Additionally, as noted in the Introduction, the Veteran is seeking a TDIU. As noted by the Court, this is a component of the claim for an increased rating. The Veteran is in receipt of a combined 90 percent disability rating, and thus, meets the criteria for consideration of TDIU under the standard enunciated in 38 C.F.R. § 4.16(a). As such, on remand, the RO should adjudicate whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.
Accordingly, the case is REMANDED for the following action:
The RO/AMC should readjudicate the claims for increased rating for left and right lower peripheral neuropathy, and such readjudication must include consideration of the additional evidence of record received in April 2011. All applicable laws and regulations should be considered to specifically include consideration of TDIU under 38 C.F.R. § 4.16(a). If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a Supplemental Statement of the Case and given the opportunity to respond thereto.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs